Most of us do not like to think about our own death or about the death of a loved one. For this reason, end of life decisions are often difficult to make, and often avoided. But since the only sure thing in life is death, it is important for you to make those decisions yourself instead of allowing a court, or someone else, make them for you.
The time to make these decisions is when you are healthy and fully capable of knowing what you want, before it is too late. There are many estate planning tools available to you in the State of Florida. By knowing which of those tools best fits your specific circumstances; you can make decisions that are not only in your best interest, but also in the best interest of your loved ones.
At The Law Offices of Pelayo Duran, P.A. we can discuss your circumstances confidentially in order to help you decide which types of estate planning documents will most effectively fulfill your wishes.
Last Will and Testament
A Last Will and Testament serves two essential purposes. The first main purpose is to name a personal representative, who is a person who will be charged with the responsibility of taking any steps necessary in order to make sure that your wishes are honored. The second main purpose is to leave instructions as to how you wish for your assets to be distributed upon your death. We always tell our clients that the Will is not born until you die. Therefore, you can always change your Will as many times as you want to until the time you die (or until the time when you lose your mental capacity). Therefore, it is important to know that Last Wills and Testaments are not self-executing. The document must be filed with the Court immediately upon your death in order to go through the probate process, and obtain a court order distributing your assets. Only then will your assets be distributed in the manner that you instructed.
Florida law has certain requirements in order for a Will to be valid, and it cannot be honored unless it meets all of those legal requirements. This could result in your assets being distributed in a different manner than you would have wanted.
Don’t assume that the form you bought at the office supply store, or downloaded from the internet, meets all of Florida’s legal requirements.
Don’t assume that your notary/realtor/accountant friend knows Florida’s legal requirements when they offer to do the Will for you.
Let the legal team of The Law Offices of Pelayo Duran, P.A. prepare a document that will enable you to pass your assets to your loved ones in the way that you desire.
Under some circumstances, it may be necessary to create a trust in order to manage your assets. A trust may be good tool to avoid probate, provide tax benefits, asset protection benefits, and other benefits, depending on your individual circumstances. However, it is important to know that merely creating the Trust does not provide any benefits at all. After creating the Trust, you must also fund it, meaning that you must transfer into it all of the assets that you wish to become a part of it. This would include any properties purchased after the Trust is created.
Your failure to do so may result in having a useless Trust. It is also important to know that you will still need a Last Will and Testament, even if you do create a Trust. This is because there must be a way to distribute any assets that may have been inadvertently omitted from the trust.
The Law Offices of Pelayo Duran, P.A. can prepare the Trust itself, and can also assist you in transferring your personal assets into the Trust.
Another way to avoid probate is to transfer your assets during your lifetime. Depending on your individual circumstances, there are tools available that may assist you in making sure that your loved ones are protected while still retaining control over your assets during your lifetime. This could include certain types of deeds when you are trying to devise your home to a family member, or simply adding a loved one’s name to certain accounts.
The Law Offices of Pelayo Duran, P.A. can assist with the preparation of these documents, as well as instructions on changes you can make yourself for little or no cost.
Living Will and Designation of Health-Care Surrogate
While the Last Will and Testament and Trust make decisions regarding your assets, the Living Will makes decisions regarding your life and end of life process. Through this document you have the opportunity to make the important decision of whether to be kept alive artificially (in the event that you are unable to make that decision at the time) because you are unconscious or otherwise incapable of deciding. Similar to how a Last Will and Testament appoints an individual to distribute your assets, a Designation of Health-Care Surrogate appoints an individual to make medical decisions on your behalf (in the event that you become incapable of making them). We always tell our clients that this should be the person that would miss you most if you should die, but also that it should be a strong person capable of making very difficult end of life decisions.
Durable Power of Attorney
The Durable Power of Attorney is a very powerful document, and requires a great deal of care. This is because the document allows someone (other than you) to make all kinds of decisions (financial and otherwise) that may have a great impact on you. In the wrong hands, this document can have devastating consequences on an individual’s life. In the right hands, it is a very convenient tool which can alleviate many burdens, especially in the case of elderly persons. However, you must be careful to select someone that you trust to make the right decisions on your behalf, and that will not abuse the trust you are bestowing upon them.